LA Weekly: The Mold Rush and the case of Sharon Kramer and Bruce Kelman

Welcome LA Weekly readers; this website is mentioned and I am quoted in a less-than-entirely-coherent story about mold litigation in this week’s LA Weekly. The story focuses on Sharon Kramer, who has given up a full-time career to pound the drums over her fight with her insurer alleging mold harms after a remediation; and an unfortunate lawsuit brought by scientist Bruce Kelman against Kramer. Kelman only wants an apology from Kramer for her issuing a press release that falsely claimed he lied under oath; Kramer has refused, and Kelman is still stuck in litigation where he will likely come up with a Pyrrhic victory. (Kelman’s work writing a layperson’s guide to the science of mold for the Manhattan Institute is central to the libel allegations.) Kramer, meanwhile, blames her aging on exposure to mold, rather than, say, turning 56. The story suffers for treating Erin Brockovich as the archetype of a justified plaintiff; Overlawyered readers know better.

The story is worthwhile for one new tidbit of information, the poetic justice facing Ed McMahon for his bogus mold lawsuit:

In 2003, another raft of huge mold news stories broke nationwide, and Kramer paid close attention. The most famous, and strangest, was that of Johnny Carson’s sidekick Ed McMahon, who took a $7.2 million settlement after suing for $20 million in his claim that mold made him and his wife sick — and killed his sheepdog, Muffin. …

In the McMahon case, some see the tragic unraveling of a popular public figure egged on by an attorney, Allan Browne. No hard, scientific evidence was ever made public proving that McMahon or his dog suffered the specific mold allergies and immune-system problems that, in rare cases, can be set off by household mold.

Since then, McMahon has become a sad figure, with a series of new troubles, including his default this year on his palatial 7,000-square-foot home on Mulholland Drive, involving a $4.8 million loan from the infamous lender Countrywide. And he just sued again, bizarrely accusing investment tycoon Robert Day of having in his mansion a poorly lit staircase on which McMahon says he fell during a party last year. McMahon is belatedly alleging he broke his neck but that doctors missed it.

The longtime TV pitchman spent years convincing the courts and the general public that his home contained rampant, poisonous, deadly mold strong enough to fell a large dog. McMahon talked it up for so long that he now faces the daunting task of selling a home he can no longer afford, that people believe is riddled with toxins.

Also interesting to me is the story’s quote of me. I gave an e-mail interview to the author, Daniel Heimpel in February. It’s interesting what gets used and what doesn’t get used, so I am going to attach the entire interview.

Here’s the full February 28 interview:

Why did the mold litigation blob form?

Entrepreneurial lawyers saw an opportunity to use junk science to blame deep pockets for a variety of idiopathic diseases. We saw it with powerlines, we saw it with Bendectin, we still see it with vaccines. Every once in a while, trial lawyers completely fool the legal system, and make billions with one of these theories, as they did with silicone breast implants. “Toxic mold” was just another stab at the litigation lottery.

Why has it ebbed?

Has it ebbed? I still see reports of an occasional verdict, including a big $22 million settlement in 2005, and there were thousands of cases pending when I last saw it. Rep. Conyers just introduced legislation on “toxic mold” last year, so someone is still lobbying about it. Rationally, it should have ebbed, because the toxic mold suits are meritless. The most notorious for-hire plaintiffs’ mold expert, Gary Ordog, was disciplined in 2006, which likely ended his $975/hour litigation consulting career, and likely a number of cases built around his testimony. Together with NIH, Institute of Medicine, and CDC reports, and insurance policies that more explicitly excluded recovery based on theories of injury from mold, and tort reforms in Texas, where mold litigation was the biggest business, plaintiffs’ lawyers may have sought, er, greener pastures.

How does the fear of mold tie into our culture of fear?

What does this fear of an enigma say about our society?

Fascinating, isn’t it? We coexist with mold for thousands of years. My friend, Walter Olson of the Manhattan Institute has said sarcastically “How unfortunate must we be to live in the twenty-first century, when plaintiffs’ lawyers have discovered the terrible health effects!”

Economic incentives have a lot to do with it: trial lawyers have an economic incentive to describe something relatively innocuous–vaccines, mold, powerlines, silicone breast implants, Bendectin–as something deadly and fit it into the fictional Erin Brockovich paradigm, which appeals to jurors’ preconceived notions. (Erin Brockovich herself has brought a number of bogus lawsuits trying to invoke this paradigm–including over mold.) Low-quality scientists of a variety of levels of sincerity are given the economic incentive to take the same position. Journalists have the economic incentive to tell a story that fits the paradigm whether or not it’s true, because the victims-and-villains storyline that could affect the viewer attracts eyeballs. The three work together symbiotically: the expert witness feeds stories to the lawyer and vice versa; the lawyer feeds stories to the journalist with the expert; the journalist creates publicity that generates business for the lawyer and the expert witness, which in turn creates more stories for the journalist.

The culture of fear is a lot larger than that (others take advantage of it), but I think the reason it is so much larger in America is because only here do we make people millionaires for inventing new things to be afraid of.

Who has made the most money off the mold litigation blob?

Attorneys, though the “mold remediation” business may well have done pretty well for itself.

And here’s how it was translated in the news story:

A lot of people are pulling for Kelman — to the great shock of Kramer, long accustomed to being the Brockovichesque heroine. Ted Frank, a lawyer and contributor at overlawyered.com, a Web site that tracks suspect litigation, says, “Entrepreneurial lawyers saw an opportunity to use junk science. … We saw it with power lines, we saw it with Bendectine” — a discontinued drug used to lessen morning sickness in pregnant women. “Every once in a while, trial lawyers completely fool the legal system and make billions with one of these theories, as they did with silicone breast implants. ‘Toxic mold’ was just another stab at the litigation lottery.”

I wasn’t asked at all about Kelman and Kramer, but am portrayed as having an opinion about it. And my observations about Brockovich and vaccines were deleted. Note also that “Bendectin” was misspelled, though I spelled it correctly.

As mildly annoyed as I am about the story, Sharon Kramer is furious for being treated as anything less than a heroic martyr, and has had an army of supporters leaving angry comments at the LA Weekly website.

18 Comments

That plus a bottle of Clorox and a spray bottle do wonders in combating mold. There are two types of toxic mold that one has to worry about: Stachibotris atra and Aspergillus fumigatus. The rest, including “shower curtain mold” are generally harmless, except they make the air smell moldy. Unfortunately, the courts do not know better and have awarded damages for garden variety mold. Also, in New York City, if a tenant complains to Housing Preservation and Development (HPD) that there is mold in the apartment, the HPD inspector writes up the landlord with a class “C” (ultrahazardous) violation no matter what the type. The court then forces the landlord to clean it up immediately or face severe fines. Tenants have forced landlords to provide them with maid service for ordinary bathroom mold.

Was glad to hear you, in reality, did not comment on this specific case. I am not aware you would have reason to have knowledge of this case. Ms. Nancy Seats of Homeowners Against Deficient Dwellings (HADD) has indicated that she too, was not asked to comment although quoted as doing so in the article.

There are NUMEROUS errors in this writing and misquotes. For instance. I couldn’t keep a “trailer” in my driveway even if I were inclined to. I live in a community that come under the bylaws of the HOA.

The picture of my family supposedly of days long gone before the mold issue, is of a family vacation we took to Lake Powell merely two summers ago.

While Mr. Heimpel apparently chose to quote some not interviewed, he did not quote some that he did interview including David Armstrong of the Wall Street Journal who authored the paper on mold and the conflicts of interest of the American College of Occupational and Environmental Medicine.

And to set the record straight on two very important points:
1. I hate lawsuits just a much as anyone else. That’s why I work so hard to get the physicians properly trained so that the illnesses are treated early before there is anything to litigate over. That why I work so hard to bring the deceit of the science of ACOEM that was then promoted by the US Chamber while falsely denying the plausibility of illness. The relationship of these two papers is what he sought to hide thru altering testimony. And yes, it IS based on math extrapolations added to a high dose, acute rodent study. (done by Burge and Rao) THESE were the calculations that were used to set a hypothetical minimum dose response before illness occurs in humans..that NO ONE else has been able to establish. The interesting calculations for threshold before human illness occurs is another story. Can you say, “Journal of Irreproducable Results”?

My heart goes out to Mrs. Kramer. There is nothing worse than the feeling of helplessness when watching a child suffer from a disease like CF. Most, however, would recognize that having such a condition results in a person an have an increased susceptibility to anything that would affect the lungs. That said, the other 99.9% of us would not and should not have the same concerns.

So perhaps as a result she has an advanced case of “can’t-get-over-itis” and has embroiled herself so deeply into the fray that she perceives any retreat would be an admission of having been wrong all this time.

There is a rather compelling article on the Scientific American website, entitled “How Anecdotal Evidence Can Undermine Scientific Results”

Pithy and germane:

“The reason for this cognitive disconnect is that we have evolved brains that pay attention to anecdotes because false positives (believing there is a connection between A and B when there is not) are usually harmless, whereas false negatives (believing there is no connection between A and B when there is) may take you out of the gene pool.”

No. That would not be correct. In this case, my expert on the science is Dr. Harriet Ammann. She was the author of the Chapter on Toxins for the IOM Damp Indoor Spaces and Mold Report. She is also the author of Chapter 1 for the new AIHA Green Book, which states:
The new AIHA book “Recognition, Evaluation and Control of Indoor Mold” addresses throughout the issue of the complexity and lack of singularity of mold exposure. Perhaps best summarized in Chapter 1, Section 1.3.5, page 13:

Indoor exposures are a complex mixture of molds, bacteria, fragments of both types of ogranisms; their multiple toxic products; and biologically derived small particles, gases and other air pollutants. Effects, depending on the susceptibility of the exposed occupants and their degree of exposure, can be combinations of allergic response, inflammation and its consequences, and other toxic responses. This complex exposure and effect picture is not addressed by risk assessment focused on spores or individual toxins.

What the authors of ACOEM did was to address the risk assessment focused solely on spores with hypothesized individual toxins. Have you ever asked yourself why they could come up with a hypothetical minimum dose response before human symptoms of toxicity occur…yet NO ONE else has been able to do this or to duplicate this finding of ACOEM? It’s because it is not science. According to the IOM, toxicological studies that examine animal and cellular models cannot be used by themselves to determine levels of exposure before human mycotoxicoses occur.

And you wonder why they want me to shut up! Or would attempt to portray me as such an ogre. Did I tell you that I hate red lipstick? Never wear red!

Do you know what they wanted me to sign before they would drop this lawsuit? Quote: “To my knowledge, their (sic VeriTox)testimony and advice are based on their expertise and objective understanding of the underlying scientific data.” In other words, they wanted to force me to commit perjury directly contradictory to what I have told the Federal GAO, before they would drop the suit. Their science is NOT consistant with the IOM or the AIHA, or the Health Canada, or the WHO, or the American Academy of Pediatrics. The ACOEM paper IS consistant with the US Chamber/Manhattan Institute, AAAAI, and ACMT. But..all of those position papers, projected to be the scientific opinion of thousands of “learned men” are either authored by VeriTox and/or Andrew Saxon.

A dehumidifier? Bleach? Come on where did you read that was a fix for mold growing inside your walls due to plumbing or construction leaks, or poor drainage or any number of other problems that lead to mold? Did a homebuilder tell you that or an insurance co? Get real! You could run a housefull of dehumidifiers and pour on the bleach and if you have a house that leaks it will still leak and rot. Only corporate money could keep such myths as “put some bleach on it” alive for so long.

Sharon, if you hadn’t have libeled Kelman in the first place, you wouldn’t be in the Hobson’s choice situation you claim yourself to be in. Kelman reaches the same conclusion the IOM does, so I don’t know why you’re digging a deeper hole for yourself and helping Kelman prove malice in his lawsuit. But apparently you care so little about your family, you’re willing to bankrupt them over your lie–even as they publicly state that they wish you’d drop the matter.

The AAP position paper (which is nowhere near as supportive as Kramer makes it out to be) is explicitly based on the bogus Cleveland findings that the CDC renounced; ironically, the AAP’s solution is to “put some [diluted] bleach on it,” which Cindy complains about.

This isn’t the place for “toxic mold” activists to repeat their junk science. Too many of the readers here know the truth, especially when the papers in question are linked from this site and contradict what Kramer is claiming.

If done correctly, bleach will cure almost all mold problems. Of course, if there is an ongoing leak, that has to be fixed in conjunction with the application of the bleach. Even mold contained inside walls (or in sheetrock) will die if bleach is sprayed in the confined spaces and allowed to sit for sufficient time. Mold hates chlorine (sodium hypochlorite) bleach.

Check out Leviticus 14:33-54 for how they took care of mold in dwellings in biblical days.

I actually learned about dehumidification (and chlorine disinfectants among other things) during my tour of duty as a county housing inspector in Indianapolis. Having inspected thousands of homes, and being thoroughly trained by people with PhDs, I’ve some to realize many things, two of which are: 1) If you’re reading this, you are presently inhaling hundreds, if not tens of thousands mold spores the overwhelming majority of which will cause you no harm, and 2) Fungus needs a few things to survive, one of which is a consistent water supply, another is a space which is not regularly cleaned. Add in some darkness, poor ventilation, and “well-ah,” you have a flourishing fungus among-us. I’m not a gambler but I would be willing to bet I’ve inspected more moldy basements, homes, crawl-spaces, bathrooms, etc…than perhaps anyone who has visited this site to date. I fully realize that my opinion is non-scientific, however it is very informed. In all but a handful of cases (less than five) I can say without hesitation, fungus proliferation was bolstered if not caused by resident laziness.

Ms. Kramer’s description of a mold problem is pretty icky.
“Indoor exposures are a complex mixture of molds, bacteria, fragments of both types of organisms; their multiple toxic products; and biologically derived small particles, gases and other air pollutants.” I caution Ms. Kramer to avoid courses on the microbes in a mammal’s mouth or in a gut. Those m1lieus are even ickier.

That is not my description. It is taken directly for the new American Industrial Hygiene Associations’ publication: “Recognition, Evaluation and Control of Indoor Mold” addresses throughout the issue of the complexity and lack of singularity of mold exposure. Perhaps best summarized in Chapter 1, Section 1.3.5, page 13:

“Indoor exposures are a complex mixture of molds, bacteria, fragments of both types of ogranisms; their multiple toxic products; and biologically derived small particles, gases and other air pollutants. Effects, depending on the susceptibility of the exposed occupants and their degree of exposure, can be combinations of allergic response, inflammation and its consequences, and other toxic responses. This complex exposure and effect picture is not addressed by risk assessment focused on spores or individual toxins.”

But I do agree with you. It is pretty “icky”. Is that a scientific description?

The people who think a little bit of bleach or soap and water will cure a mold problem may be right if they are talking about a little bit of ordinary mold that shows up in a shower stall.

What we are dealing with here is EXTENSIVE mold due to bad faith insurance and/or serious construction defects and defective products used in construction.

Synthetic stucco is a good example of a defective product that can allow water leaks into the walls of a home that the homeowner may not discover for as long as ten years. All that time mold is growing in the walls. One doctors family I worked with found mushrooms growing on the bedroom wall of their ten year old home — the first time they knew there was a problem. We have homeowners with brand new homes that have windows installed upside down and windows with no flashing that allow water into the wall cavity. These are molds that have grown and spread for a very long time, they are toxic and harmful to health. NO amount of bleach will fix this problem. Dry wall is the perfect food for mold.

This issue has NOTHING to do with a lazy homeowner but EVERYTHING to do with homebuilders that have insulated themselves from accountability which allows them to continue to build the slums of tomorrow today. Defense attorney’s who have helped these builders continue bad building practices are a huge part of the problem and I am sick and tired of hearing them talk about trial attorney’s and homeowners or any plaintiff wanting to hit the jack pot. What a joke. I don’t know a homeowner yet who has been a victim of this type of construction who has been made whole. Attorney’s don’t even want our cases because even if they win the builders have LLC’s they simply close down, don’t pay the award, and start a new LLC.

Insurance companies are notorious for denying claims or doing band aid fixes. If they honored their policies and did proper repair none of us would even be writing about the health effects of toxic mold.

Shame on defense attorney’s that help these criminals destroy families.

Someone mentioned what they did about mold in Leviticus — YES — read that one and it will tell you that even in biblical times they knew about the harmful effect of toxic mold.

I presume you are the Ms. Seats of the Homeowners Against Deficient Dwellings fame. Your little organization seems to be the homeowners version of there’s a terrorist under every rock. But do consider that….

Not every spot of mold is toxic.
Not every human is allergic/has reaction to even the most toxic of molds.
Not every home builder is a crook.
Not every insurance company is dishonest in handling claims.
Not every attorney is a charlatan.

But in this wide world with billions and billions of people there are always a few who would qualify in each category. And yes mold predates biblical times. So what. If it were that toxic we would all be dead by now. Even today, if mold were that toxic the bodies of the citizens of New Orleans would still be piling up in the streets. But they are not, even though there are still plenty of people living in homes that have mold growing in, on and around them.

But I can tell what effect your beloved plaintiffs lawyers crusade for injustice has done. It has made it practically, if not totally, impossible to get insurance coverage for mold damage. Why, because before the onslaught of lawsuits an insurance company could gauge the number of incidents and expected payouts for such events from an historical perspective. But what cannot be gauged is the Powerball-like jury awards for events that may have no basis in reality and may even predate the policy inception date.

So after thirty years of having insurance coverage for mold damage, now I have none. Be sure to thank all of your trial lawyer friends for me.

The scientific journal Chest printed an article by Emanuel which says “More fungi that produce toxic metabolites are discovered every day. Brook and White estimated that 19 species of fungi are known to producing natural poisoning of animals, and 68 other species contain substances that are toxic when fed experimentally. It has also been estimated that there are at least 97 toxic metabolites from the genus Penicillium alone and 64 toxic metabolites from the genus Aspergillus. Thus, there is a tremendous potential for these toxic substances to affect man.”

Clinical Infectious Diseases printed a study by Singh which says, “In the past decade, the frequency of opportunistic fungal infections as increased, and the spectrum of fungal pathogens has changed. The increasing number of susceptible hosts, the introduction of new modalities for hematopoietic stem cell transplantation, the evolution of organ transplantation practices, the use of novel immunosuppressive agents, and current antimicrobial prophylactic strategies have likely contributed to the changing epidemiology of invasive mycoses.”

Bumper, that means there’s a lot of mold and its accompanying toxicity out there AND it has MUTATED, so you can let go of the “ubiquitous argument.” These studies are both available in their entirety, free, from PubMed.

BTW, you may be interested to know that they are numbers 47 and 24, respectively, in the ACOEM position statement. How the authors could read those studies and come to the conclusion they did is unconscionable. READ THEM. I have. They don’t say what’s attributed to them.

As for greedy trial lawyers, I have no doubt the guys on the defense side of the aisle are living far more comfortably than MY lawyer, who lives in MY modest neighborhood and represents several clients who can’t pay. BLESS PLAINTIFFS ATTORNEYS. They are our only chance at a level playing field against the DEEP POCKETS of the building and insurance industries.

Yes, Bumper I am THAT Nancy Seats and very proud of it. 15 years 7 days a week is a long time to fight the big money of the NAHB and the insurance industry, but someone has to do it. I would like to invite you to go to the HADD web site and read the newspaper stories that are posted on our Headline News page every day. Click on our data base and search by builder or by state to see the horrors that families who have purchased new homes are suffering.

Consumer Reports wrote in about 2004 that 15% of each new home built EVERY year has two or more SERIOUS defects. Granted that may only be about 150,000 + families EVERY year but those families suffer financial losses that are unimaginable if you haven’t experienced it. People don’t have money to rebuild a brand new house, they can’t sell it due to foreclosure laws for enough to pay off the mortgage — no one can even guess how many of the current foreclosures are due to substandard construction and lack of consumer protection on top of those foreclosures due to fraudulent lending. And by the way — many builders have their own mortgage companies that were intimately involved in predatory/fraudulent lending.

Not every spot of mold is toxic. NO ONE EVER SAID THAT IT WAS!!

Not every human is allergic/has reaction to even the most toxic of molds. NO ONE HAS CLAIMED THAT EVERY HUMAN WILL SUFFER THE HORRIBLE EFFECTS THAT SOME HAVE, BUT FOR THOSE WHO DO THERE MUST BE A REMEDY.

Not every home builder is a crook. NO ONE HAS EVER CLAIMED THIS. I DO WISH THOUGH THAT THE GOOD BUILDERS WOULD JOIN TOGETHER TO CLEAN UP THEIR INDUSTRY WHICH HAS BECOME INCREASINGLY CARELESS SINCE THE BUILDER LOBBY AND THEIR ATTORNEY’S HAVE BEGUN USING WORTHLESS TEN YEAR WARRANTIES WITH PREDISPUTE BINDING ARBITRATION CLAUSES AND THEIR RIGHT TO CHOOSE THE ARBITRATION SERVICE THAT IS BEHOLDEN TO THEM. BUILD CRAPPY HOUSES THAT CAN’T KEEP THE RAIN OUT AND THEN FORCE BUYERS INTO KANGAROO COURT. GOOD BUILDERS SHOULD BE JOINING IN THIS BATTLE TO REGAIN THEIR GOOD NAME. BUILDERS TODAY ARE RESPECTED AS MUCH AS SOME USED CAR SALESMEN.

Not every insurance company is dishonest in handling claims. I NEVER CLAIMED THAT THEY WERE, ALTHOUGH FOR THE LIFE OF ME I CAN’T THINK OF A SINGLE ONE THAT PAYS CLAIMS IN A TIMELY MANNER AND DOESN’T TRY TO PUSH THE VICTIM INTO AN UNJUST SETTLEMENT. IF YOU CAN NAME ONE I SURE WOULD LOVE TO KNOW BECAUSE I NEED GOOD INSURANCE. I ONCE ASKED THE INSURANCE COMMISSIONER OF MY STATE IF HE COULD THINK OF ANYTHING EVERYONE HAS TO HAVE BUT DOESN’T DARE USE BESIDES INSURANCE AND HE COULDN’T.

Not every attorney is a charlatan. I NEVER CLAIMED THIS EITHER — MAYBE YOU NEED TO READ MY POST AGAIN. THE ATTORNEY THAT I USED FOR MY HOUSE CASE WAS WONDERFUL. I WOULD RECOMMEND HIM TO ANYONE AND HAVE. MY BUILDERS ATTORNEY HOWEVER DID EVERYTHING IN THEIR POWER TO RUN UP MY COSTS WITH DELAY TACTICS, ETC. HOPING THAT I WOULD GO AWAY. I DIDN’T, BUT MANY HAVE NO CHOICE. THAT SHOULD BE UNETHICAL, BUT IT HAPPENS TO PLAINTIF’S ALL THE TIME, AND I IMAGINE THAT SOME POSTERS ON THIS BLOG ARE GUILTY AS CAN BE OF DOING JUST THAT. JUDGE’S NEVER SEEM TO SANCTION ACTIONS THAT SHOULD BE SANCTIONED. THE PROBLEM NOW IS THAT FEW HOMEOWNERS CAN EVEN GO TO CIVIL TRIAL ANYMORE DUE TO BINDING ARBITRATION CLAUSES WHERE HOMEOWNERS ALWAYS LOSE.

Then there are the builders with LLC’s — read this story that a home inspector sent me today. I happen to know one of the builders in this story – I used to live in Kansas City – and he is notorious for doing this — that’s why we tell everyone doing research on builders to search court house records which used to work better before so many started using binding arbitration so they could keep their dirty laundry from the public. http://www.nbcactionnews.com/content/cfa/story.aspx?content_id=e783cff9-88a7-49cb-9dd9-adca07aec0e4

I’m a very old senior citizen and I remember the day when business’s took pride in the work they did and would do nothing to harm their reputation. Today greed is the bottom line and it makes me very sad for my grown daughters and grandchildren, and YES — yours too because they will have to deal with this kind of greed in their lives unless people like Sharon Kramer and I can by some miracle get the powers that make law and regulations to listen to us even if all we have is truth and no money for their campaigns.

Shoddy fly-by-night contractors have nothing to do with the Chamber of Commerce, the Manhattan Institute, or the sound science refuting the more ludicrous claims by plaintiffs’ lawyers about mold.

Seats’ claim that homeowners always lose in arbitration is blatantly false, as any regular reader of this website knows. And fraudulent borrowing has far outstripped fraudulent lending.

She’s confusing multiple issues.

The moral is that if your contractor won’t give you a personal guarantee, you can take that as a sound warning that the reason you’re getting the price you’re getting is because you won’t have much chance of recourse if you’re dissatisfied later, even if you win in court. The LL in LLC stands for “limited liability” for a reason. It has nothing to do with the subject of this post, so we’re closing comments as Seats has gone way off topic and is being abusive.